MAYS LANDING - Absentee ballots handled by Marty Small's campaign workers in 2009 were steamed open and - if the vote wasn't for the Atlantic City councilman - the ballot was replaced or destroyed, according to aspects of the state's case discussed Wednesday during a failed attempt by three of the workers to have voter-fraud charges against them dismissed.
In September, Small and 13 others were indicted on several charges in an alleged conspiracy to disenfranchise voters and help Small defeat Lorenzo Langford in the Democratic mayoral primary. Small lost his bid. Two men have since pleaded guilty.
David Callaway, Floyd Tally and LuQuay Zahir were in court Wednesday trying to get portions of the nine-count indictment dismissed. Superior Court Judge James Isman denied their motion, resulting in Callaway's sister Toni Dixon dropping her dismissal attempt.
But the four-hour hearing did give more insight into the state's case - along with making public allegations by the defense that the investigation was nothing but "selective prosecution" made as retribution for Small successfully fighting similar charges two years earlier.
Isman called that claim the most interesting "only if I could measure audacity."
"Everyone's doing it, so why pick on my client?" Isman said of the logic behind that charge.
On June 9, 2009 - the day after the election - teams of investigators were going door to door to track down the voter on each ballot, said James Grimley, attorney for Callaway. Their first question: How are you sick or confined? Absentee ballots were supposed to be limited to those who couldn't go to the polling place.
One of those questioned was threatened with jail if they didn't cooperate, the attorney charged. "How is that an even handed, fair and impartial investigation?" he asked. "To go out there and threaten the alleged victim."
The state met its burden of proof to get the grand jury to indict, Isman said in rejecting the motions to dismiss.
Attorney Michael Schreiber said there wasn't enough evidence against his client, Zahir, because most of the claims have him in the room, but not actively participating.
But, according to Deputy Attorney General Anthony Picione, the state has Zahir on tape informing their cooperating witness - identified in investigative documents as Edward Colon Jr. - to leave the portion of the ballot to be signed by the designated messenger blank.
"That is absolutely, positively illegal," Isman said.
Messenger ballots are supposed to be delivered by a person the voter designates, the judge said, adding that it should be someone they trust.
The state claims the signing happened later, at an "autograph party," where workers signed the ballots.
But that wasn't the only illegal gathering, according to information from the state's case discussed in court Wenesday.
Co-defendant Ramona Stephens - who former power player Craig Callaway referred to as his wife - had parties at her Atlantic City home where the group would steam open the ballots and count the votes, Deputy Attorney General Anthony Picione said. If the vote wasn't for Small, it would be replaced with a new ballot or destroyed.
"This wasn't just Ramona Stephens doing this while everyone else just sat around watching," Picione said. "This was everyone participating. That's what the meeting was for."
Of the 119 ballots Zahir turned in, 51 were rejected. That is far above the average 20 percent that usually are rejected, the judge noted. About a third of Tally's were turned away, 40 percent of Dixon's and nearly 50 percent of Callaway's.
Co-defendants Thomas Quirk and Demaris Jones will have similar motions to dismiss heard today. The group will then have until Monday to decide whether to take a plea deals or go to trial. Jury selection is set to begin Oct. 4.
In October, Ronald Harris, 24, of Atlantic City, admitted he and others conspired to submit false documents involving messenger ballots in the primary. Harris, a registered Democrat, later told a reporter he only pleaded guilty out of fear.
Earlier this month, Ernest Storr, 44, not only admitted to breaking election laws during Small's campaign, but said he did the same thing while helping then-Mayor Scott Evans in his unsuccessful bid in 2008. Although both campaigns were for Democrats, Storr is a registered Republican, according to voter records.